Nos. 09-16860; 10-15059 _____________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee-Cross-Appellant, v. AUTOZONE, INC., Defendant-Appellant-Cross-Appellee. ________________________________________________________________ On Appeal from the United States District Court for the District of Arizona (No. 2:06-cv-926) _________________________________________________________________ REPLY BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE-CROSS-APPELLANT _________________________________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M Street, N.E., Fifth Floor Washington, D.C. 20507 (202) 663-4731(w); (202) 663-7090 (fax) paula.bruner@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Bristol Locknut Co. v. SPS Tech., Inc., 677 F.2d 1277 (9th Cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . 15 EEOC v. Delight Wholesale Co., 973 F.2d 664 (8th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . 13 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336 (3d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 General Telephone Co. v. EEOC, 446 U.S. 318, 331 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 International House of Pancakes, Inc. v. Twin City Fire Insurance Company, 19 Fed. Appx. 686 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . 9, 11, 12 McGinest v. GTE Service Corp., 360 F.3d 1103 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . 19, 20 Paluck v. Gooding Rubber Co., 221 F.3d 1003 (7th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Prendeville v. Singer, 155 Fed. Appx. 303 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . 11 Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d Cir.1998). . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7 Snake River Valley Elec. Ass'n v. PacifiCorp, 357 F.3d 1042 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 10 United States v. Leal-Cruz, 431 F.3d 667 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Voohries-Larson v. Cessna Aircraft Co., 241 F.3d 707 (9th Cir.2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 FEDERAL RULES AND OTHER AUTHORITY Fed. R. Civ. P. 51(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Fed. R. Civ. P. 51(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Fed. R. Civ. P. 51(c)(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5 Fed. R. Civ. P. 51(d)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Fed. R. Civ. P. 51(d)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . .3, 11 Federal Civil Judicial Procedures and Rules (West 2010 ed.). . . . . . . . . . . . 4 9A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2553 (2d ed. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 ARGUMENT In its principal cross-appeal brief, the Equal Employment Opportunity Commission ("EEOC" or "Commission") contended that the EEOC properly objected on the record to the retaliation instruction that limited the adverse action to whether Stacy Wing's promotion had been withdrawn. EEOC Br. at 2-3. The Commission further contended that the district court abused its discretion when it failed to include the denial of promotion as an adverse action in its retaliation instruction because the record contained substantial evidence that Wing had been denied a promotion because she complained about Jose Contreras' sexual harassment. Id. at 57-58. Finally, the Commission contended that the district court's error was prejudicial because, if the jury had been properly instructed, it might have reached a different conclusion since proof that Wing had secured the promotion is not necessary for a denial claim and the evidence could have supported a finding that AutoZone retaliated against Wing by denying her a promotion for complaining about the harassment. Id. at 55, 59-61. Accordingly, the EEOC urged this Court to reverse the trial court's judgment on the retaliation claim and remand that claim for a new trial. In response, AutoZone asserts that the district court's jury instruction on the retaliation claim was correct for three reasons. First, AutoZone asserts that the EEOC waived any objection it had to the jury instruction on retaliation because the Commission did not make a proper objection "during either of the two jury conferences held on the record." AZ Resp. Br. at 23. AutoZone notes that while both the EEOC and AutoZone objected to certain proposed jury instructions when they were submitted to the district court prior to trial, the EEOC did not object during the charge conference. Id. at 21. Second, AutoZone asserts that, because Wing's EEOC charge alleged that she had been demoted from the PSM position and the EEOC's complaint alleged that AutoZone had withdrawn Wing's promotion to the PSM position, neither the EEOC nor Wing ever asserted that the retaliation claim was based on a failure to promote. AZ Resp. Br. at 24. Thus, even if the EEOC had preserved an objection to the jury instruction, "it should not be permitted to assert a new claim on appeal." Id. at 23. AutoZone further avers that the denial of a promotion claim was not at issue in the case because, in the Pre-Trial Order, the EEOC stated that the only basis for retaliation was the alleged withdrawal of Wing's promotion. Id. Finally, AutoZone contends that, in any case, the jury instruction was appropriate because the EEOC cannot "point to any record evidence that would support a failure to promote claim" since Wing was not qualified for the PSM position, "an essential element of a failure to promote (or denial of a promotion) claim." Id. at 25. Additionally, AutoZone asserts that "there is no record evidence of any retaliatory intent on behalf of AutoZone" because "Wing testified that she did not even begin her alleged training until after she complained about Mr. Contreras in mid-2003," and there is evidence she received favorable treatment after she complained. Id. at 26 (emphasis in original). In making these arguments, which are simply incorrect, AutoZone ignores most of the points made in the Commission's opening brief. Accordingly, the Commission urges this Court to reverse the adverse judgment on the retaliation claim and remand it for a new trial. a. The Commission did properly object on the record to the jury instructions on the retaliation claim and therefore has not waived its objection. EEOC Br. at 2- 3. Rule 51(c) (1) states: "A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection." Fed. R. Civ. P. 51(c) (1). Rule 51(c)(2)(A) adds that "[a]n objection is timely if: a party objects at the opportunity provided under Rule 51(b)(2)." Fed. R. Civ. P. 51(c)(2)(A). Finally, Rule 51(d)(1) clarifies that "[a] party may assign as error: (A) an error in an instruction actually given, if that party properly objected; or (B) a failure to give an instruction, if that party properly requested it and - unless the court rejected the request in a definitive ruling on the record - also properly objected. Fed. R. Civ. P. 51(d)(1)(A)(B). In other words, according to the Advisory Committee Note to Rule 51(d)(B), a court has the authority to "review the failure to grant a timely request, despite a failure to add an objection, when the court has made a definitive ruling on the record rejecting the request." Federal Civil Judicial Procedures and Rules 239 (West 2010 ed.). At the district court's direction, ESSER at 2, and in compliance with Rule 51 (a)(1),<1> the EEOC submitted several months before the trial a proposed jury instruction that clearly indicated the adverse action for the retaliation claim was that "Defendant denied Ms. Wing a promotion to a Part Sales Manager position[.]" II-SER-107; EEOC Br. at 59. Additionally, the Commission objected to AutoZone's jury instruction, which excluded the denial of promotion claim, and explained that describing the adverse action as a demotion "inaccurately reflect[ed] the EEOC's allegations in this case and the Court's ruling on Defendant's Motion for summary judgment, which concludes that EEOC has alleged that defendant denied Ms. Wing a promotion and that this denial is an adverse employment action. Plaintiff has proposed an alternative instruction, above." Id. at 110. Given that the EEOC clearly requested that the denial of promotion claim be included in the jury instruction at the time the district court ordered such submission, and it registered an objection to the exclusion of the denial of promotion claim when confronted with AutoZone's proposed instruction, the EEOC "object[ed] at the opportunity provided," Rule 51(c)(2)(A), and fully apprised the district court of its position. Smith v. Borough of Wilkinsburg, 147 F.3d 272, 278 (3d Cir.1998) (preserving objection made at in camera charging conference under Rule 51 because "the district court was fully apprised of [the party's] position, and it would serve no purpose to require counsel to have formally reasserted the objection after the charge had been given to the jury"). The EEOC also effectively objected "on the record" to the exclusion of the denial of promotion claim. On the first day of the trial, the court inquired as to whether there were any objections to the draft preliminary jury instructions which included the denial of promotion claim. ASER at 2; I-SER-30. AutoZone objected, arguing that the EEOC had agreed in its pretrial order to characterize the adverse action as a withdrawal of promotion. Id. In rebuttal, the EEOC stated that, as it had set forth its position in the summary judgment pleadings, the evidence indicated Wing's promotion had been "denied and withdrawn." Id. When questioned as to whether Wing's position was that the promotion had been withdrawn, the EEOC clarified that, while the facts could be characterized as either a denial or a withdrawal of the promotion, "there's evidence that she was told she would not be promoted." Id. at 3. More discussion on the topic ensued: THE COURT: I understand that. But was she told that she wasn't being promoted because someone else had said you are promoted? Or did they say, we intend to promote you, and then they said, we're not going to promote you? MR. LOPEZ: Well, I think -- I think at some point she was -- it was represented to her that she would be promoted, and they did not promote her. Id. The EEOC's position was that the evidence would support a finding that throughout the course of Wing's tenure with AutoZone she had variously been either denied a promotion or had a promotion withdrawn such that the jury instructions should include both retaliatory acts. Accordingly, the Commission fulfilled its Rule 51 obligation to state on the record its objection to the jury instruction requested by AutoZone and the grounds for the objection. Under these circumstances, it is immaterial that the EEOC was not the party to actually initiate an objection to the court's draft jury instructions. Because the draft jury instruction presented to the parties contained the language the EEOC sought to be included, i.e. the denial of promotion claim, there was no basis for the EEOC to initiate an objection. Instead, and as expected, AutoZone initiated the objection and the EEOC made clear to the court through its opposition that it objected to the proposed exclusion of the denial of promotion claim from the instruction. Therefore, the EEOC's objections, which were on the record, were sufficient to challenge the revised instructions that were ultimately docketed and which excluded the denial of promotion instruction. A contrary view would not only exalt form over substance but would result in a the unjust exclusion of a claim well founded in the evidence produced at trial. Furthermore, for reasons based firmly in well settled rules of practice, the Commission was not required to make any further objections in order to preserve this point of error for appeal. By issuing a retaliation instruction that excluded the denial of promotion claim, II-SER-102, the district court made a "definitive ruling on the record" that relieved the EEOC from registering future objections to the erroneous jury instruction. "The failure to object [at the close of the charge] may be disregarded if the party's position previously has been made clear to the trial judge and it is plain that a further objection would be unavailing."). See 9A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2553 at 411 (2d ed. 1995), quoted in Smith, 147 F.3d at 277 (by filing and obtaining ruling on proposed instruction, litigant satisfies rule requiring objection to the charge before jury retires to consider its verdict, and litigant does not waive objections to instructions by failing to restate them following delivery of the charge; counsel need not restate an objection that has already been raised and ruled upon). Indeed, the record is clear that the district court was aware of the Commission's request that the retaliation instruction include a denial of promotion as an adverse action and that the court conveyed its rejection of that request by excluding that claim from its docketed instruction. Finally, AutoZone's argument that the EEOC lodged no objection during the final charge conference is disingenuous. Prior to charging the jury, the district court again invited the parties to critique the jury instructions. Once again, the draft jury instructions included the denial of promotion claim; hence, the Commission did not raise an objection. ESSER-53-55. AutoZone, on the other hand, objected to the court's inclusion of the denial of promotion claim. Specifically, during the final charge conference, AutoZone objected to "[t]he word 'denying' in paragraph two, line eight" of the retaliation instruction and insisted that "[i]t should read either withdrawing and/or demoting in that paragraph, to be consistent with the preliminary instructions." II-SER-71. When asked by the court if it agreed with AutoZone's statement, the Commission said, "I think our position is preserved." Id.<2> Although the Commission's response may seem vague, the Commission, as already discussed, had already objected to the exclusion of the denial of promotion claim from the instructions and repeatedly stated, during the summary judgment, pre-trial, and trial proceedings, its position that the retaliatory acts in the case included both a denial and withdrawal of a promotion. Further, despite the Commission's reiterations of its denial of promotion theory, the district court had repeatedly rejected the Commission's requests to include the claim in the instructions as evidenced by the docketed versions of the preliminary, final, and revised jury instructions on the retaliation claim. II-SER-69, 99-101. As a result, the Commission believes a fair interpretation of its actions supports the conclusion that, in accordance with the purpose of Rule 51, the EEOC had exhausted its duty to inform the court of the potential error in restricting the jury instructions to the withdrawal of promotion claim and to provide the court an opportunity to correct it. See Voohries-Larson v. Cessna Aircraft Co., 241 F.3d 707, 713 (9th Cir.2001) ("The purpose of Rule 51 is to alert the district court that an instruction is defective."); see also Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 340 (3d Cir. 2005) ("Rule 51 serves the critical purpose of apprising the trial court of possible errors in the charge and affording the court and the parties an opportunity for correction before submission of the case to the jury.). Therefore, this Court should conclude that the objection was made and preserved on the record. Because the EEOC "preserved" its position regarding the inclusion of the denial of the promotion claim, International House of Pancakes, Inc. v. Twin City Fire Insurance Company, 19 Fed. Appx. 686 (9th Cir. 2001), is distinguishable and AutoZone's reliance on that case is misplaced. AZ Resp. Br. at 22. In that case, when the court provided the parties an opportunity to comment on revised jury instructions, the plaintiff did not make an objection but instead responded that the instructions, it later attempted to challenge, were "satisfactory." Id. at 687. Here, in contrast, EEOC did not make an objection because the draft version of the final jury instructions included the instruction requested by the Commission. II-SER-71. In addition, the Commission never stated that it was satisfied, but rather expressed its objection to AutoZone's proposal that the denial of promotion claim be excluded when it stated to the court that it "preserved" its position. Id. This case is also unlike Snake River Valley Elec. Ass'n v. PacifiCorp, 357 F.3d 1042 (9th Cir. 2004). In Snake River, the plaintiff participated in three jury charge conferences, of which only the third was formal and on the record. At that conference, the plaintiff objected to an error in the instruction that was different from the errors it noted in its appeal, and its general objection to the instructions in the earlier conferences lacked the specificity required to put the court on notice that the plaintiff opposed the alternative jury instruction. Consequently, this Court held that the plaintiff's assignments of error were waived. Id. at 1053. In this case, in contrast, the EEOC voiced explicit objections to the exclusion of the denial of a promotion claim and it presented specific reasons for including the claim to the district court during AutoZone's challenge to the draft preliminary and final instructions. Hence, it cannot be said that the district court was not "alerted to the exact nature of the disagreement" by the time the Commission expressed belief that it had preserved its position at the final charge conference. Prendeville v. Singer, 155 Fed. Appx. 303, 306 (9th Cir. 2005). Accordingly, this Court should find that the Commission did not waive its right to appeal the formulation of the instruction. Alternatively, even if this Court agrees that "the EEOC did not make any objection to the jury instruction during either of the two jury conferences held on the record," AZ Resp. Br. at 23, the Commission has not waived its objection to the retaliation instruction because its initial objections during the pretrial stages established the grounds for the Commission's objections with specificity and rendered any further objections futile. IHOP, 19 Fed. Appx. at 687 ("the Ninth Circuit does not require a formal objection where such an objection would be futile"). As previously discussed, Rule 51(d)(1)(B) excuses a party's failure to object on the record where "the court made a definitive ruling on the record rejecting the request." Fed. R. Civ. P. 51(d)(1)(B). Here, the record reflects that, despite the Commission's efforts to advance the denial of promotion claim and have it included in the jury instructions, the district court continued to issue and docket jury instructions that restricted the adverse action in the retaliation instruction to a withdrawal of promotion. II-SER-69, 99-101. Hence, even if the Commission's pre-trial objections and first day of trial contentions about the retaliatory acts at issue in the case are not considered "on the record" and its "preserved" position in the final charge conference is not considered sufficiently definitive in accordance with Rule 51(c)(1), this Court nonetheless should consider the Commission's point of error preserved because the district court had definitively ruled against the Commission on the issue. See Fed. R. Civ. P. 51(d)(1)(B). As the Ninth Circuit observed in United States v. Leal-Cruz, 431 F.3d 667 (9th Cir. 2005), "[d]espite counsel's failure to articulate clearly her position at the final jury instruction conference, we conclude that her failure to object formally to the given instruction does not rise to the level of an affirmative relinquishment or abandonment of Leal-Cruz's right to challenge the instruction on appeal." Id. at 669-70. Therefore, the Commission is entitled to have its objection to the retaliation instruction reviewed in this appeal. b. AutoZone's contention that district court properly instructed the jury because a denial of promotion claim was never before the court is specious. AZ Resp. Br. at 20. The denial of promotion claim has always been at issue in this case. The record establishes that the EEOC has advanced the denial of promotion claim, explicitly and implicitly, throughout this litigation. See EEOC Br. at 56-59. However, AutoZone, throughout this litigation, and even now on appeal, has continued to misconstrue the Commission's retaliation claim. AutoZone asserts that the "scope of this lawsuit is governed by the allegations Ms. Wing made in her charge" and because Ms. Wing's charge to the EEOC only alleged she was demoted in retaliation for her complaints, the Commission's suit is accordingly limited. AZ Resp. Br. at 24. This argument lacks merit. As the Supreme Court recognized, the EEOC is the "master of its case," EEOC v. Waffle House, Inc., 534 U.S. 279, 291 (2002), and "[a]ny violations the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable." General Telephone Co. v. EEOC, 446 U.S. 318, 331 (1980). Thus, "[t]he permissible scope of an EEOC lawsuit is not confined to the specific allegations in the charge." EEOC v. Delight Wholesale Co., 973 F.2d 664, 668 (8th Cir. 1992). Instead, the Commission's lawsuit "may extend to any discrimination like or related to the substance of the allegations in the charge and which reasonably can be expected to grow out of the investigation triggered by the charge." Id. Here, Wing alleged in her charge that she had been demoted from the PSM job because she complained about sexual harassment. ASER at 1. However, the Commission's investigation uncovered other potential retaliatory acts, including a denial and withdrawal of a promotion to the PSM job, similarly resulting from AutoZone's reaction to her complaints about being sexually harassed. The denial and withdrawal claims are clearly like or related to the substance of Wing's EEOC charge because they rest on similar facts concerning the PSM position, involve the same actors, and are tied to her complaint of sexual harassment. Accordingly, the Commission has the authority to sue based on the failure to promote claims. Next, AutoZone argues that the denial of promotion claim was not properly before the district court because "[i]n the complaint, the EEOC alleged that AutoZone withdrew its promotion of Ms. Wing to a PSM position." AZ Resp. Br. at 24. As it did throughout the litigation, AutoZone again on appeal mischaracterizes and misquotes the Commission's complaint. As the Commission repeatedly reminded the court and AutoZone throughout this litigation, the complaint states that "Defendants' unlawful retaliation includes but is not limited to withdrawing Ms. Wing's promotion to a Parts Service Manager or a Parts Sales Manager position." II-SER-116 (emphasis added). The broader language of "includes but not limited to" conveys that other retaliatory acts were at issue in this action beyond the withdrawal of promotion claim. Indeed, at the summary judgment stage, in addition to asserting facts in support of the denial of promotion claim, I-SER-35, the Commission also asserted that AutoZone had retaliated by denying Wing a day off and scheduling her for four consecutive day shifts. Id. at 34. Further, even though AutoZone correctly argues that, in the Pre-Trial Order, the EEOC mentioned only the withdrawal of promotion claim in its description of the retaliation claim, AZ Resp. Br. at 24; ASER at 195, 207, especially in this context, such inartful drafting should not thoroughly doom an entire claim. While "[a] pretrial order governs the subsequent course of the action," a district court may allow modifications of the issues in the proceedings "to prevent manifest injustice." Bristol Locknut Co. v. SPS Tech., Inc., 677 F.2d 1277, 1279 (9th Cir. 1982). Here, despite the pretrial order, the Commission's complaint provided sufficient notice that the retaliation claim encompassed more than the withdrawal of the promotion claim. II-SER-116. Even the district court recognized this claim was in the case when, during the summary judgment proceedings, the court stated "Wing believes she was denied a promotion" and concluded that "[i]f she believed the denial was a punitive measure resulting from her complaints, it 'might have dissuaded a reasonable worker from making or supporting a charge of discrimination,' and constitute an adverse employment action." I-SER-48. The Commission introduced and the district court properly allowed evidence on the denial of promotion claim and other allegedly retaliatory acts at trial from both parties. III-SER-335, 340-42, 354; ESSER-24, 30, 33-35. AutoZone never claimed surprise or prejudice when the EEOC presented its argument and evidence on the denial of promotion claim during the trial AutoZone merely pressed its position that the alleged adverse action in the case was a demotion or withdrawal of promotion. ESSER-4-6. The Commission continued to advance its theory even after the district court issued a preliminary jury instruction limiting the adverse action to a withdrawal of promotion claim. Indeed, in addition to testimony by Wing regarding the three occasions she was told she would not receive the PSM promotion because she had complained, EEOC Br. at 58; See III-SER-335, 340-42, 354, the Commission reiterated the facts supporting the denial of a promotion theory. In response to AutoZone's Rule 50 motion for judgment as a matter of law, the EEOC countered by pointing to testimonial evidence that Wing asked Contreras if she would be promoted and he said no because she told on him in June. II-SER-87. The Commission also pointed to the denial of promotion by Brown and Schmitt. Id. With respect to the tangible employment action claim, the Commission referenced the same facts regarding the three managers' refusal to promote Wing and asserted that "[a] reasonable jury could conclude that she was denied the promotion as a result of harassment by her supervisor." Id. at 86. Given that facts supporting the tangible employment action for the hostile work environment claim and the adverse employment action for the retaliation claim were the same and were argued vigorously, it is clear that the Commission never abandoned its position regarding the promotion denial theory, but rather kept it a central issue in the case. The Commission similarly made clear there were two separate adverse actions - denial of promotion and withdrawal of promotion -- when AutoZone renewed its Rule 50 motion following the closure of its case-in-chief. Once again, AutoZone argued that there was no evidence that Wing was demoted or had a promotion withdrawn because there is no evidence that she ever held the position of PSM. ESSER-38-42, 52-53. In rebuttal, the Commission emphasized the denial of the promotion theory. Specifically, the Commission noted: They keep referring to the withdrawal of the PSM code as if that were the only act of alleged retaliation. It is not. Miss Wing testified that there was retaliation prior to December 2003 by Mr. Contreras when he told her, I am not going -- you are never going to get promoted to a PSM because you told on me. That is an adverse employment action. II-SER-72. The Commission added: Miss Wing has testified that Mr. Brown told her, you're not going to be promoted to PSM because you went outside the company, went to an outside agency and filed a charge of discrimination. That is an adverse employment action. ESSER-48. On this record, this Court should conclude that the Commission kept the denial of promotion claim before the district court and that AutoZone's argument that the only adverse employment action advanced by the EEOC was the "alleged demotion/withdrawal of a promotion from a PSM position," is unfounded. AZ Resp. Br. at 25. c. AutoZone argues that, even if its procedural objections are without merit, this Court should not find error with the jury instruction because "[t]he EEOC cannot point to any record evidence that would support a failure to promote claim." AZ Resp. Br. at 25. AutoZone's argument is untenable. The district court rejected AutoZone's argument that no evidence supported the retaliation claim when it denied its Rule 50(a) motion at the close of the Commission's case-in-chief. I-SER-22, 28. This is because the record contained Wing's testimony that she had been told on three separate occasions by management that she would not get the promotion to the PSM position because she had filed an internal grievance and an EEOC complaint about the sexual harassment. See III-SER-335, 340-42, 354. Wing's testimony, if credited, was sufficient to support, not only a jury instruction, but a favorable finding on the denial of a promotion theory. Thus, AutoZone's argument that there is no evidence in the record to support the denial of promotion claim simply must fail. AutoZone argues next that there was no error in the jury instruction on retaliation because "Wing was not qualified for the PSM position during her employment - an essential element of a failure to promote (or denial of a promotion) claim." AZ Resp. Br. at 25. According to AutoZone, the evidence is undisputed that Wing was not qualified for the PSM promotion because Wing was unable to identify any of the managers she shadowed during her training, she admitted that she did not perform certain PSM duties during her training, and she never completed training under the second store manager. Id. at 25-26. This argument is flawed. To send a retaliation claim to a jury, the plaintiff need only present sufficient evidence (1) that the employee opposed an unlawful employment practice; (2) that she suffered an adverse employment action; and (3) that the adverse employment action was caused by her opposition to the unlawful employment practice. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004). In other words, the only question on appeal is whether the EEOC presented sufficient evidence of retaliation, or more specifically, causation, to reach the jury. Here, the Commission presented direct evidence that Wing's complaints of sexual harassment factored into AutoZone's decision not to promote her. Indeed, Wing averred that she was told by Contreras that he would not seek a promotion for her because she had "told on him." III-SER-335, 354. Because Contreras was the store manager and Wing's harasser, and he was authorized to make a promotion recommendation to district manager Goddard,<3> his statement alone is sufficient to support a finding of retaliatory intent. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) ("Causation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity . . . . ") (quoting Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009-10 (7th Cir. 2000)). Additional evidence that Wing was told two more times by two managers that she would not receive the promotion because of her discrimination complaints bolsters a finding of retaliatory intent. Hence, a reasonable jury could have decided that a retaliatory motive was at work. In addition, AutoZone's argument that a plaintiff asserting a retaliatory denial of promotion claim must prove, presumably as part of the prima facie case, qualification for the job denied is a classic red herring. AutoZone cites no authority for this assertion. In this Circuit, to establish a prima facie case of retaliation in a denial of a promotion context, the plaintiff must show that Wing "1) . . . acted to protect [her] Title VII rights; 2) that an adverse employment action was thereafter taken against [her]; and 3) that a causal link existed between the two events." McGinest, 360 F.3d at 1124. Further, AutoZone's contention that it is undisputed that there is no evidence that Wing was qualified for the job is baseless. The record here contains evidence from which a finding could be made that Wing was qualified for the PSM position. First, given that AutoZone has no structure or set criteria for promotion to this position, Wing, like many of her general sales colleagues, would qualify for the position by, for example, simply doing a good job in her present job and "knowing the ropes." In other words, the "qualification" standards for the PSM job were not especially rigorous and most good employees would qualify. Furthermore, contrary to AutoZone's assertion that it is undisputed that Wing is not qualified, AZ Resp. Br. at 25, the evidence here is sufficient to allow a jury to believe that Wing was qualified for the promotion to PSM. The record is undisputed that Wing received PSM training. According to district manager Brian Goddard, the PSM training process occurs as follows: "If the store manager thinks the employee is promotable, then Goddard tells the store manager to get them trained up and ready to go. There's no formal training. They would shadow the manager. They would take the extra effort that they needed to do. Then, Goddard and the manager would talk and say, is he or she ready? Goddard would sit down and talk with them a few minutes and try figure out where they are." ESSER-39. Following this procedure, the record shows that Goddard directed store manager Jose Contreras to train Wing to become a PSM. III-SER-332-33, 357-58. Wing testified that she completed the training guide that Contreras had given her and that she shadowed some managers. Id. at 333-34, 353-54. As a PSM, Josh Arias worked with Wing and thought she "was real professional and a good employee." ESSER-11. Arias also testified that Contreras told him he thought Wing was qualified to be a PSM. III-SER-266. Additionally, Howard Brown testified that Wing, Hector and another employee "all said they were being trained as PSMs." ESSER-18. He said he checked with his immediate predecessor, Derrick Edwards, and "he said that he was training them, but they were not in fact PSMs, he was just training them." Id. at 19. Indeed, Brown continued to train Wing to be a PSM. Id. Lastly, Wing was given PSM responsibilities and had a password typically possessed by a PSM. III-SER-336-37. Barajas, an AutoZone employee who was a non-managerial employee like Wing during this period, testified that he and Wing were given a manager's password because there were no PSMs at Store 2737. II- SER-239; see also III-SER-336, 338. Howard Brown, the store manager who permanently replaced Contreras, testified that while he does not recall whether there were any PSMs when he came to Store 2737, he does remember that "it was severely understaffed," including in management positions. ESSER-13. He also remembers Wing and Barajas putting in passwords for other employees - a responsibility that only PSMs could perform. Id. at 17. Brown testified that Wing and Barajas told him that they were in training to become PSMs and that they actually were performing some PSM duties. Id. at 22. From this evidence, a jury could conclude that given Wing's training, her completion of the training guide, and the PSM tasks she was performing, she was at a minimum within the pool of individuals from which AutoZone might likely select PSMs and was therefore sufficiently qualified for purposes of the Commission's retaliation claim. That Wing admitted she did not perform certain PSM tasks or possess the knowledge that certain duties were required of a PSM is far from fatal to the Commission's retaliation claim. The record indicates that there was no uniform approach to training employees to become a PSM. Hector Barajas testified that he did not recall undergoing any formal or structured training to become a PSM. ESSER-7. Instead, Barajas believed he was trained informally. Id. Similarly, former PSM Arias testified that "there is maybe a set procedure that AutoZone would like employees or managers to follow as far as like promoting people, which you eventually do. But for the most part it seemed like it was mostly, you get promoted just depending on your knowledge, how you do. * * * I mean, you kind of just work your way up." Id. at 12. Arias added that he "wasn't aware that there was some kind of a, you know, guideline or some kind of a book that I was supposed to do or anything like that." Id. To become a PSM, Arias said he "tried to learn as much as I could as quick as I could. And I was always, I guess you can say, trying to - if I was done with a customer I'd try to get involved with somebody else if they were having a hard time and kind of together try to figure out what the problem was. Just learn the ropes, you can say." Id. Interim store manager Derrick Edwards said he started off as a register, which is a part-time sales associate, and "kind of worked his way up to PSM." Id. at 29. Relatedly, store manager Brown testified that "[a]ll store managers train the Parts Sales Managers" and the length of the training process depended on the person. ESSER-14-15. Brown also was not sure if there were written training requirements. Id. at 15. He recalled that at one time there was a binder you could print out and quizzes you could take on a computer, and he had found some old copies of a PSM Training Guide, which he used because it had some good basic knowledge." Id. District manager Scott Schmitt testified that he told Wing that if she wanted to be promoted to a PSM, she needed "to work with her manager, to make sure she shows up and continues to do her duties, show up on time and get to work. And work with her manager very closely. * * * And then he would evaluate her position." Id. at 32. Therefore, even though Wing admitted that she did not perform certain PSM duties or recall the names of the managers she shadowed, the jury had the evidence before it to make credibility determinations and weigh the evidence, and could have concluded that Wing met the minimal qualifications for the promotion and would have received it but for her complaints about the sexual harassment. In that Wing testified that she fulfilled many of the steps outlined by these managers and PSMs, her testimony combined with the lack of structure and uniformity in the training undermines AutoZone's argument that Wing was not qualified for the PSM job and further could have permitted the jury to conclude that her alleged lack of qualification was not the actual reason for her non- promotion. d. Lastly, AutoZone argues that the Commission's cross-appeal should not prevail because "there is no record evidence of retaliatory intent on behalf of AutoZone." AZ Resp. Br. at 26. AutoZone argues that evidence that Wing's training for the PSM position commenced after she complained about being sexually harassed, received a promotion from part-time to full-time status, and received another promotion to a commercial specialist position indicate that "the EEOC has not produced any evidence that AutoZone failed to promote Ms. Wing to a PSM position, let alone did so in retaliation for her complaint of harassment." Id. AutoZone's argument lacks merit. First, contrary to AutoZone's contention, the trial record contained evidence upon which a jury could easily find retaliatory intent. Wing testified that managers Contreras, Brown, and Scott Schmitt told her she would not get the PSM promotion because she had complained about sexual harassment. III-SER-335, 340-42. Second, AutoZone's argument that the Commission cannot establish a retaliatory motive because Wing was offered PSM training after she complained makes no sense. The claim at issue is not the denial of training but rather the denial of a promotion, and the evidence is clear that Wing was not given a promotion after she complained. Also, Brian Goddard, the district manager who offered Wing the opportunity to train as a PSM, was not aware of Wing's sexual harassment complaints, ESSER-38, nor was he implicated in Wing's allegations of retaliation. Rather, Contreras, Brown and Schmitt were the persons charged with denying her the PSM promotion, and record evidence indicated that they were aware of her sexual harassment complaints. III-SER-335, 342; ESSER-37. Accordingly, the fact that the training opportunity was offered after she complained is largely irrelevant to the retaliation claim. Third, the record contained undisputed evidence that Wing worked for AutoZone for three years and was never promoted to PSM despite the fact that she had taken and completed PSM training twice and served in the position temporarily. II-SER-86; III-SER-335-36. In contrast, Josh Arias was promoted from a red shirt to PSM roughly 7 months after he was hired, and he was not aware a training handbook existed nor was required to undergo any formal training. ESSER-10-12. Similarly, Hector Barajas was a red shirt who was eventually promoted to PSM by Scott Schmitt and he was not required to complete the training handbook or take any formal training. Id. at 7-9. On this evidence, a jury could decide that the evidence that these men, who hadn't engaged in any protected activity, were promoted despite the fact they did not possess the credentials or training experience Wing had, suggests that it was Wing's complaint of sexual harassment that motivated AutoZone's decision not to promote her. Hence, the Commission presented sufficient evidence of retaliatory intent, which under a proper instruction, might have resulted in a finding of liability. AutoZone's argument that it could not have retaliated against Wing because it made her full-time and promoted her to a commercial specialist job is similarly unavailing. The fact that AutoZone officially placed Wing in full-time status and ultimately promoted her to a commercial specialist has no bearing on whether the company denied her promotion to the PSM job because of her protected conduct. III-SER-332; ESSER-27. And there was no evidence that the commercialist specialist was at the same pay or status level as a PSM. ESSER-26. On the whole, none of AutoZone's arguments justify the exclusion of the denial of a promotion claim from the retaliation instruction. The Commission was entitled to have a jury instruction tailored to the retaliation evidence and theories it presented at trial. By excluding the denial of promotion claim from the jury instruction on retaliation, the district court misled the jury and did not permit it to consider that AutoZone also could be liable for retaliation if it denied Wing the promotion because of her protected activity. Indeed, had they been properly instructed, they might have held AutoZone liable for retaliation, especially since such conclusion would not require a finding that Wing had held the position in the first place. EEOC Br. at 58-60. This Court should therefore reject the arguments proffered by AutoZone, reverse the retaliation judgment in favor of AutoZone, and remand for a new trial on the retaliation claim. CONCLUSION The Commission proposed a jury instruction on the denial claim that was supported by the evidence presented at trial and the court's improper restriction of the adverse action instruction to a withdrawal of a promotion substantially impacted the outcome of the case. Accordingly, the EEOC urges this Court to reverse the retaliation judgment and remand this claim for a new trial. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel s/PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4731 paula.bruner@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this Reply Brief of the EEOC complies with the type-volume limitation of Fed. R. App. R. 28.1(e) (2) (B) because this brief contains 6,667 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(A) (7) (B) (iii). This brief also complies with the typeface requirements of Fed. R. App. P. 32(a) (5) and type style requirements of Fed. R. App. P. 32(a) (6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 Times Roman 14 pt. s/PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4731 paula.bruner@eeoc.gov CERTIFICATE OF SERVICE I hereby certify that, on July 30, 2010, pursuant to 9th Cir. R. 25-5, an electronic copy of the EEOC's Reply Brief along with the certificate of service was electronically filed using the Court's ECF system to counsel for defendant- appellant, AutoZone, Inc.: Tracy E. Kern, Esq. Jones, Walker, Waechter, Poitevent, Carre?re & Den?egre 201 St. Charles Avenue, 47th Floor New Orleans, LA 70170-5100 Laurie M. Chess, Esq. 601 Brickell Key Drive, Suite 500 Miami, Florida 33131 Donald Peder Johnsen, Esq. Gallagher & Kennedy, P.A. 2575 East Camelback Road Phoenix, Arizona 85016-9225 s/PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M Street, N.E., 5th Floor Washington, DC 20507 202-663-4731 July 30, 2010 CERTIFICATE FOR BRIEF IN PAPER FORMAT I certify that this paper brief is identical to the version submitted electronically on July 30, 2010. s/PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4731 paula.bruner@eeoc.gov *********************************************************************** <> <1> Rule 51(a)(1) indicates that a party may furnish written requests for a particular jury instruction at the close of evidence "or at any earlier reasonable time that the court orders." Fed. R. Civ. P. 51(a)(1). <2> In responding to the court's query, EEOC counsel also stated "I think that's the court's ruling." II-SER-71. Thus, in referencing the court's ruling the Commission acknowledged that the court had definitively ruled on the matter when it previously issued retaliation instructions that restricted the adverse action to the withdrawal of promotion claim. <3> District manager Brian Goddard testified that Contreras, as a store manager, would have had to run all PSM hires through Goddard. ESSER-36-37. A jury could deduce from this evidence that Contreras played a key role in the determination as to whether Wing would be promoted.